BROLLY: The law will set us free!

Joe Brolly

Published:12:00Sunday 23 August 2015

I don’t like diving. But it is infinitely worse than diving when the association abuses its power. Which is precisely what has happened with Tiernan McCann.

What he did is embarrassing and outrageous. It poisons the spirit of the game. But it does not excuse the authorities succumbing to mob rule. What’s next? Put him in stocks on Jones Road and pelt him with rotten vegetables?

The GAA must apply the law. It made it. So it’s stuck with it. On top of that, the rules of the association must comply with the laws of Ireland. It goes without saying that all law must be read in accordance with the principles of natural justice and the rules of statutory interpretation. In Tiernan’s case, these are not particularly difficult concepts.

So the lawmaker is presumed – as a matter of law - to mean what he says.

In this instance, the lawmaker (Congress) has created a specific offence of simulation. Rule 5.4 creates the offence of “attempting to achieve an advantage by feigning a foul or injury.” And the lawmaker has decided – for better or worse – that the penalty for feigning is a caution. (R5.4(i)) So, there it is in a nutshell.

The whole purpose of any law is to create certainty for the lawmaker and the citizen. This reason for this is twofold. Firstly, it ensures that the citizen knows the rules and what will happen to him if he disobeys them. Secondly it prevents the lawmaker from arbitrarily abusing his power. When I was a child, during the troubles, one of the Priory Road boys painted graffiti on the side wall of Coyle’s warehouse saying, “When those who make the law break the law, there is no law.”

In the same way, the purpose of the GAA’s rules is to ensure the player knows before he takes the field what they are and what the penalties are for breaking them. So, for example, a player knows that the penalty for a striking offence is a red card and a minimum period of suspension. In precisely the same way, he knows that should he be caught simulating (“attempting to achieve an advantage by feigning a foul or injury”), the penalty prescribed by law is a yellow card.

Tiernan’s offence falls squarely within R5.4. Feigning is feigning. No one act of feigning is worse than another. All feigning is unsporting and damages the ethos of the game. The essence of the offence is to try to gain an advantage by feigning a foul or injury. Which is all that Tiernan has done. Nothing less. Nothing more.

The lawmaker looked at this very problem and decided to draft a rule to deal specifically with it. Having done so, the offence was created. The lawmaker also considered the appropriate penalty. For better or worse, they decided that the penalty is a yellow card. So, any player who feigns a foul or injury, knows that he risks a yellow card. The player, the referee and the authorities know this. The specific offence and the specific penalty create certainty for the player and prevent the executive from abusing its power. This way, everyone knows where they stand, which is the purpose of any law. If this were not so, then Rule 7(2)(e) (misconduct considered to have discredited the association), which carries a minimum 8 week ban, could be used to override any offence.

The only reason the disrepute provision in 7(2)(e) has been used in this instance is because the authorities decided the punishment prescribed by law is not harsh enough. So, having created the offence and the punishment, they just ignored it and instead used what I will call, “The Colm O’Rourke Law.”

The executive may well feel that a yellow card is not sufficient punishment. It is understandable the GAA may wish to take a stand against this behaviour and send out a clear message that it will no longer be tolerated. All acts of feigning are, after all, corrosive to the spirit and ethos of the game. But the executive must comply with the rules, in the same way that the player must comply with them.

What the executive cannot do is manipulate the law simply to punish Tiernan more severely than the current law allows. Which is precisely what it has done. If they can decide on a case by case basis that a player guilty of feigning can be singled out for more severe punishment, then Rule 5(4) is worthless. Put another way, Rule 5(4) is not worth the paper it is written on.

As a matter of law, therefore, charging Tiernan under Rule 7(2)(e) is an abuse of power, since it is only being done because the executive does not like the penalty that they themselves have laid down in rule. Put simply, the GAA doesn’t want to follow its own rules.

The decision is entirely arbitrary. There have been countless examples of feigning in the league and championship. In all cases where a player has been caught, he has received the penalty prescribed by law i.e. a caution. Michael Shiels (Cork), Rory Beggan (Monaghan), James O’Donoghue (Kerry) and others have all feigned a foul/injury in major championship games. Singling Tiernan out for special punishment using a rule not designed to cover the offence is unprecedented and obviously arbitrary. This ground alone is enough to allow Tiernan to succeed in these proceedings. The decision is plainly irrational. The rule is clear. The penalty is clear. The executive must act “reasonably and fairly.”

The words in the rule must be given their “plain and natural meaning.” The plain and natural meaning of the rule is that Tiernan has feigned a foul/injury to gain an advantage and should be punished accordingly. It doesn’t matter whether Colm O’Rourke said on RTE that the GAA should ban him for eight weeks to make an example (which is precisely what they have attempted to do). It doesn’t matter that most people, myself included, think a yellow card is not a sufficient punishment. What matters is the law.

The rules give certainty to the player. They also protect him. But more importantly, they protect the GAA’s integrity and prevent us from abusing our power. We may not like the punishment for the offence but we cannot twist the law to arrive at a punishment we do like. That would surely be the grossest example of misconduct discrediting the association.